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Full text of "Malik v. Ministry of Government Services, Board of Inquiry, February 1981 BOI 124"

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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970, c, 318, as amended, 

AND IN THE MATTER OF the complaint of Mr. Nadim 
Altaf Malik against Her Majesty the Queen in 
Right of Ontario acting through Her servants and 
agents in the Ministry of Government Services, 
and the following servants or agents personally, 
John Noble Turkington, Christine Deault and 
D'Arcy Counsell. 



APPEARANCES 

S.L. GOLDENBERG, ESQ. - Counsel for the Ontario Human 

Rights Commission and the Complainant 



ONTARIO 

MINISTRY OF LABOUR 



MAR 2 1981 



HUMAN RIGHTS 
COMMISSION 



BOARD OF INQUIRY 



MARY A. EBERTS 



C. RIGGS, ESQ. 



Counsel for the Respondents 



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Mr. Malik complains that the Respondents are in breach 
of section 4(1) (b) (c) and (g) of The Human Rights Code ^ R.S.O. 
1970, as amended. The sections provide: 

4. (1) No person shall, 

(b) dismiss or refuse to employ or to 
continue to employ any person; 

(c) refuse to train, promote or transfer 
an employee; 

(g) discriminate against any employee 

with regard to any term or condition r 
of employment 
because of race, creed, colour, age, sex, 
marital status, nationality, ancestry, or 
place of origin of such person or employee. 

He states in his complaint, submitted on March 1, 1978 to the 
Ontario Human Rights Commission, that he was offended against 
because of his race, colour, ancestry or place of origin. 

Mr. Malik's complaint arose when he was unsuccessful 
in a competition for a permanent job of Clerk Supply 2 within 
the Ministry of Government Services. The Ministry was the 
original respondent in Mr. Malik's complaint; at the opening 
of the hearing before this Board, on October 31, 1979, the 
individual respondents were added on consent. They are, or 
were at the material time, employees of the Ministry. 

Mr. Malik laid a complaint with the Human Rights 
Commission on March 1, 1978. Attempts at conciliation were 
unsuccessful, and this Board of Inquiry was appointed. Hearings 
were held on October 31, 1979 and January 22, 1980. 

Mr. Malik began employment with the Ministry of Government 
Services, on a contract basis, in September 1974. He worked as 
a supply clerk, picking out, packing and shipping orders in the 
warehouse of the Ontario Government Bookstore. The availability 
of nine permanent "Clerk Supply 2" jobs was advertised among the 
warehouse staff by way of a memo from the Warehouse Manager, J. N 



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Turkington dated February 15, 1978. Of these nine jobs, one 
was to perform the duties of a shipper/receiver and the other 
eight were to perform the duties of supply clerk. Twelve 
employees, all on contract or working as "GO-temp" workers, 
submitted applications by the required date of February 21. 
All were interviewed on February 27, 19 78, in turn, by a panel 
composed of D'Arcy Counsell, Manager of the Publications Service, 
Noble Turkington, Supervisor of the Publications Warehouse and 
Christine Deault a recruitment officer in the personnel branch 
of the Ministry. Noble Turkington was the immediate supervisor 
of the twelve applicants; he reported to D'Arcy Counsell. 

The three interviewers sat informally together in the 
cafeteria of the warehouse building and candidates were heard 
one by one, with no other candidates present. Each person was 
seen for fifteen to twenty minutes and asked roughly the same 
questions as the others. The questions were agreed upon in 
advance of the interview by the three presiding. The only 
variation from one candidate to another occurred if supplementary 
questions were needed to clarify his answers or explain the main 
questions to him. 

The main questions posed by the interview team were 
outlined by Mrs. Deault. They were: 1) describe the important 
aspects of the position you seek; 2) what is the expectation of 
an employer and an employee in a hiring situation? 3) what are 
your career goals? 4) how many times are you late in a month? 
5) what is your attitude to your coffee break and extended 
lunches? 6) do you have any suggestions for improvement in the 
way the job is done? 

The Request for Staff CEx. 33) for the Supply Clerk 
position gave the following details of the job: 

Duties New Employee Will be Required to Perform 

- To select orders for publications from the shelves & 
wrap & mail same after indicating method of mailing 
and affixing appropriate stamps, labels, stickers, etc. 

- To stack shelves with publications 

- To move skids about in the skid area 

- To load and unload trucks manually 

- To occasionally clean shelves 

- To do any other job normally expected of a stock room clerk 



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Experience Desired 

- Two years stockroom experience (minimum) 
Classifications Desired 

- A thorough knowledge of Ontario Government Publications 
a must 

- Some knowledge of Federal Government Publications helpful 

-A COMPETITION TO BE HELD FOR THIS POSITION- 



At the end of the interviews, the three interviewers reached a 
concensus about what rating each candidate should receive, given 
their answers to these questions and the standards set by the Skilled 
Trades Rating Manual, The applicable page of the manual was submitted 
as Exhibit 38a and is reproduced below: 



SKILLED TRADES RATING MANUAL 
MlniauB accepcable score.. 



1. EDUCATION 



AcadPBle and trade training 
exceed all requlreaents 

48 



Additional trade or skill 
training closely related to 
field 38 



As required 



\28 



Minima acceptable educaelor 
combined with suitable 
experience 



2. EXPERIENCE 



Lengthy, progressive and 
varied experience In trade 
plus wide experience In 
related fields 



Hany years' varied trade 

experience plus significant 
experience in related work 

115' 



MMe- Chan required 
experience in trade plus 
experience in related 
vork 

92 



Mlniaus experience in 
trade plus experience in 
related work 

69 



Could obtain required work 
experience within one year 

46 



Llalted or apprentice 
experience 23 



3. VALUE OF icnow.eix:e 

RELATED TO POSITION 



l. tXPRESSION 



Extensive knowledge of 
trade and related fields. 
Aware of new developments 
and techniques 

96 



Above average knowledge 
of own trade and related 
fields 

76 



Heets requlreaent for 
position 



56 



Appeara to be wenk 

in soae areas required 

for position 

36 



Newly certified, only 

apprenticeship 

experience 

16 



Able to analyse and discuss 
variety of subjects. Able to 
comunlcate with non- 
trades people. Able to 
write clear, concise work 
reports 

60 



Gave clear concise replica. 
Probably able to write 
satisfactory reports 

48 



Acceptable replies to 
questions. Sceas to under- 
stand what inforaatioa is 
required in written report. 

35 



Frequently unable to 
explain work nethoda or 
procedures. Probably un- 
able to produce a aean- 
ingful written work 
report 23 



Diction so poor or accent 
no bad It was difficult to 
understand what was said 

10 



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Digitized by the Internet Archive 

in 2013 



http://archive.org/details/boi124 l 



Or. 36a. 



5. INITIATIVE 


6. REUABaiTT 


7. PHYSICAL SUITABILITY 


8. PERSONAL CILARACTERISTICS 


Seena able Co devlae aol- 
udons to unexpected job 
problens. Likely to vol- 
! untarlly cumplete add- 
itional taaka, and re- 
arrange work sequence for 
greatest efficiency 

78 


Appears able and willing 
to plan work details and 
follow through all steps 
to complete assigned tasks. 

60 


Physically fit for all 
requirements of position 

60 


Quietly confident. Showed 
enthuaiaam and interest in 
work. Proud of skill 

60 


Appears willing to under- 
take additional tasks and 
likely to recoimend areas 
where other work is 
required, nost efficient 
■ethods or sequence c etc. 
i 56 


Appears able and willing 
to plan own achedule to 
make best use of time, 
tools, materials, tranaporc, 
etc. to complete Jobs with 
little or no need foe 
superrlsion 

48 




Co-oparates, friendly, helpful 
attitude 

SO 

Hot unpleasant but not 
forceful or attractive 

40 




Appears able to do routine 

work with mioiaum 

supervision • 

35 
• 


Slight physical short- 
coming for position. Hay 
require medical evidence 
35 


Nepvous, agitated. 
Zxeesaively talkative 

30 


Probably would report 
conditions where need 
for work is obvious. 
Unlikely eo undertake 
additional Casks unless 
Instructed 

35 


Appears unable to solve 
minor Job problems with* 
out frequent instruct- 
ions from supervisor 

23 




Taetleas, overbearing or 
rude. Critical of paat 
ei^iloyers 

20 


Probably would do assigned 
work only. Unlikely to 
look for or report on add- 
itional requirements 

13 


Appears to require 
continuous cloae auper- 
visioo 

10 


Does not appear physically 
capable. Hay require medical 
evidence 

10 


Appeared to be un- 
co-operative in interview 
Evaded or Ignored questions 

10 



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Mr. Malik received the second lowest rating; the 
scores were as follows: 



Top ranking 


candidate 


478 


2nd 


•1 


433 


3rd 


•1 


425 


4 th 


II 


425 


5 th " 


II 


425 


6 th 


II 


404 


7th 


M 


392 


8 th 


II 


389 


9 th 


II 


381 


10 th 


II 


381 


11th 


II 


344 (Malik) 


12th 


II 


313 



The top ranked candidate received the shipper/receiver job. 
The candidates ranked 2 through 9 received the supply clerk 
jobs, with the tie between number 9 and number 10 being 
resolved in number 9's favour because of his war service. 

Mr. Malik had expected to be given a permanent 
position. He had more on-the-job experience at the Publications 
Warehouse than the other candidates, had introduced most of the 
^ others to the requirements of the job when they began work and 
had never had any complaints about his work. Not being hired 
hurt Mr. Malik very deeply. His employment terminated, with the 
end of his last short-term contract, on March 31, 1978. 

A letter from J. N. Turkington explaining why he did 
not get the position (Ex. 10) explained: 

The reason you were not selected was that since all 
applicants including yourself had on-the-job experience 
the competition was very close and you were edged out 
not because you were a bad overall worker (there were 
no really bad workers at the interview) but mainly 
because you had no strong points in your favor and you 
did not present yourself as well for the interview as 
the other, also latenesses, extended lunches and coffee 
A breaks were a detrimental factor. 



Mr. Malik and the Human Rights Commission contended 
before the Board that the interview procedure discriminated 
against Mr. Malik, They did not say that there was any conscious 
intent to discriminate. Rather it was argued that reliance on 
an interview as the sole method of allocating the permanent jobs 
constituted "indirect" discrimination against the complainant. 
The inte'rview may have been essentially the same for all candidates, 
but because of Mr. Malik's ethnic background he performed badly 
in t-hat setting. He didn't get a chance to have his real capacity 
for the job evaluated, and was, therefore, wrongly refused a 
permanent position. 

It was submitted on behalf of counsel for the Ministry 
that the concept of "indirect" discrimination cannot be used 
in cases decided under The Ontario Hutaan Rights Code. I am ■ 

satisfied that the language of the Code does not preclude the 
use of this concept. Although section 4 (1) of the Code does not 
forbid actions that directly or indirectly have the prohibited 
consequences, as do other sections and subsections of Part I, the 
language of the section does not require that the offense be 
direct, in any sense of that word. Importantly, the Supreme Court 
of Alberta has held that intent need not be shown in order to 
succeed in an offense under legislation like The Ontario Human 
Rights Code ; see Re Attorney General for Alberta and Gares et al . 
(1976) , 67 D.L.R. (3d) 635. This means that the effect of conduct, 
as well as its design, can be the measure of its acceptability 
under The Code , and it is effect of conduct that figures largely 
in determining what is indirect discrimination. It may be noted 
that the concept of "indirect discrimination" was explored, and 
applied, by a Board of Inquiry under The Code in Singh v. S.I.S. 
(Gumming, May 31, 1977), a case finding an employer's requirement 
to wear a certain type of uniform and cap contrary to the Code 
because of its indirect, adverse effect on the employment of Sikhs, 
whose religion requires the wearing of a turban. 

It is necessary, however, to explore what is involved 
in an argument of "indirect" discrimination, so that its 
appropriateness and cogency in Mr. Malik's case can be assessed. 



The idea of "indirect" or "impact" discrimination was 
established in American jurisprudence under Title VII of the 
Civil Rights Act 1964 by the cases of Griggs v. Duke Power Co, , 
401 U.S. 424 (1974) and Albermarle Paper Co. v. Moody , 422 U.S. 
405 (1975). These cases dealt with black workers; the Supreme 
Court decision in Dothard v. Rawlinson , 97 S.Ct. 2720- (1977) 
applied the same reasoning in a case of alleged sex discrimination. 

The starting point is a requirement for employment that 
seems to be neutral, like, for example, a requirement that certain 
skill or intelligence tests be passed, that a certain level or 
proficiency in English be demonstrated, that the employee be 
above a certain minimum height or weight, or able to wear a certain 
kind of uniform cap. The requirement that all candidates perform 
at a certain level in an oral interview would be such a "facially 
neutral" requirement. Nothing on the surface shows a discriminatory 
purpose or content, because the requirement is applied equally to 
all. 

Yet, a disappointed applicant may argue that this 
deceptively neutral requirement actually has a disproportionately 
negative impact on members of a particular group. In Dothard , 
for example, more women than men were disadvantaged by a minimiam 
height and weight requirement for prison guards. In Singh v. S . I . S . , 
Sikhs as a group were proportionately more disadvantaged in 
obtaining employment with a security guard company because of its 

requirement to wear a cap. 

It is up to the complainant to show that the requirement 
in question has a disproportionate impact on members of the 
group to which he belongs. That group must, to be sure, be one 
that is protected by the Human Rights Code. Once the complainant 
has established the disproportionate impact on his group of a seemingly 
neutral requirement, the burden shifts to the employer to show 
that use of the offending test or criterion is a business necessity. 
The employer must show that certain employee traits are necessary 
for, say, greater effiency or safety and also that the impugned 
practice or criterion is actually successful in measuring or 



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predicting these qualities. If the employer succeeds at that, 
then the employee may still show that other selection devices 
without similar discriminatory effect would also serve the employers 
legitimate business interests. 

Thus , once disproportionate impact is established, the 
employer must show not only that the impugned device produces 
employees with the job related qualities required, but that it 
is the only way of selecting such employees. 

The Commission has sought to apply the foregoing approach 
to the interview used by the Ministry to choose persons for the 
permanent Clerk 2 Supply jobs. It argues that the interview format, 
and this interview format in particular, has a discriminatory 
impact on Mr. Malik and persons like him because of their ethnic 
background. Mr. Malik came from Pakistan in 1970 at the age of 
23. He is a Muslim, and very traditional in his outlook, as 
exemplified in the Commission's submission by the fact that his 
wife was chosen for him by his mother. His family speaks Urdu and 
Punjabi at home, although he learned and spoke English at school, 
and later at work. He secured a Grade 12 education in Pakistan. 

The Commission did not bring any statistical evidence 
to show that job interviews in the Ministry of Government Services 
have over time resulted in a disproportionately high rate of 
rejection for people of traditional Muslim and Pakistani backgrounds. 
Nor did it rely heavily on any statistical analysis of the 
results of this particular interview, although Mr. Malik stated 
in his testimony that the twelfth-ranked applicant was very 
similar in background to himself, and they both believed there 
had been discrimination. 

The Commission's case focussed in part on Mr. Malik's 
low scores in four of the areas on the Skilled Trades Rating 
Manual scale: expression, initiative, reliability and personal 
characteristics. He argued that because of Mr. Malik's back- 
ground he would score unfairly low in these areas in an interview, 
and that these elements of the score should be disregarded. He 



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asked that a comparison be made between the scores of Mr. Malik 
and the successful 9th ranked candidate. Were the offending 
elements of the scores to be deleted from both, he argued, Mr. 
Malik would come out ahead. As there was some controversy 
about the "reliability" factor, he argued that even with Malik's 
lower reliability rating left in, he would emerge ahead of the 
successful candidate and should have had the job. 

The scores in question were: 

Malik Ninth ranked 

successful candidate 



Education 2 8 28 

Experience 92 69 

Related Knowledge 56 56 

Expression 23 4 8 

Initiative 35 35 

Reliability 10 35 

Physical Suitability 60 60 

Personal Characteristics 40 ' 50 

344 381 



The reason for submitting that the three or four 
elements of the scores be deleted was that here, in particular, 
Mr. Malik's ethnic background would render him seriously 
disadvantaged by this apparently neutral test. Omitting the four 
starred categories from both scores would produce scores of 
236 for Mr. Malik and 213 for the other candidate. 

The Commission relied to establish this branch of 
its argument on the testimony of Dr. Frances Henry, since 1973 a 
full professor of anthropology at York University particularly 
interested in studying black and East Asian communities in Canada. 

Dr. Henry testified that Mr. Malik's area of the world 
has one of the most rigidly stratified methods of organization of 
any of the societies anthropologists know about. Where an interview 
was being conducted by individuals occupying authority roles, like 
Mr. Counsell and Mr. Turkington, an individual of Mr. Malik's 



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background would assume a very deferential, non-assertive, low 
key approach. The assessment procedure would make him feel his 
inferior and subordinate position and react accordingly. In a 
work environment, the person of Mr. Malik's ethnic and cultural 
background thinks that by being non-assertive and simply doing his 
small job without anything further, he would demonstrate his 
loyalty to his superior. In exchange for that loyalty, he would 
expect to be cared for and protected. 

Mr. Malik's expectation that he would receive a permanent 
job for his long service has been referred to. He stated he went 
into the interview expecting it to be something of a formality, 
and was upset by some of the questions which seemed to him to be 
too personal. Particularly offensive were queries about his night 
studies in electronics technology and his career goals within the 
civil service. In this connection. Dr. Henry testified that 
persons of Mr. Malik's cultural background can be very rigid and 
unable to "roll with the punches." If one's expectations of the 
interview were not met, she stated "I think he would be at sea, 
would fall apart, probably in very demonstrable ways." 

Certainly, this hypothesis about behaviour from Mr. Malik's 
cultural group accords with some of the reactions the interviewers 
noted and scored adversely. He was said to "present himself" badly, 
not come forward with suggestions for improving work methods, to 
speak indistinctly, to have bad posture. One of his responses was 
particularly damaging to him. When asked if he would take the 
initiative to return to work upon noticing that he and a group had 
stayed too long at a coffee break, he replied that he would wait 

for the group to move. Both his reliability and initiative marks 
suffered for this reply. 

We must also -take into account Dr. Henry's further 
observations. Two of the successful candidates, placed at fourth 
and fifth place respectively, were also of East Asian origin. 
One, a Hindu, had been raised and educated in Kenya, later pursuing 
studies to the Masters' Degree level at two Indian universities. 



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The second, a Christian, had been born and raised in Georgetown, 
Guyana, attaining a Grade 12 education there. Both stated that 
they would call themselves ' East Asian in origin, as was Mr. Malik. 
The success of these two candidates raised the question of the 
extent to which Mr. Malik's low performance in the interview was 
related to his own personality and characteristics, as distinct 
from cultural background. While stipulating that an East Asian 
person's reaction to the interview might vary depending on the 
degree of modernization or Westernization in his or her upbringing, 
Dr. Henry stated, at p. 4 82 of the transcript: 

"...while I would have to admit as you suggest that ^ 
obviously there is room for individual difference, 
and not every individual Pakistani would react in 
quite that way, clearly on the other hand the 
tightness, the intensity, the rigidity of that 
stratification system, and what it involves for the 
individual, for the personality if you will, is so 
strong that in this kind of culture/personality 
interaction I would give an awful lot of weight to 
the cultural aspects." 

Dr.- Henry also stated on cross-examination that there is 
no statistical evidence available, to her knowledge, to the effect 
that in Canada Pakistanis who participate in interviews of this 
kind, particularly the kind of interview established and run by 
the Ontario government, will in fact do proportionately worse 
than other groups. She also stated that to her knowledge there 
is no statistical evidence to demonstrate any distinctions in 
interview performance between different groups of East Asians. 

What the Commission's submission amounts to is an 
assertion that the interview method here used would fall 
disproportionately severely on persons of very traditional 
Muslim/Pakistani upbringing. It offers expert testimony, 
but no statistics, to back up the argument. 

In the first place, it must be borne in mind what has 
to be shown by a plaintiff seeking to establish "indirect" or 
"impact" discrimination in a facially neutral requirement. In 
Dotha'rd v. Rawlinson , 97 S.Ct. 2720 (1977), Mr. Justice Stewart 
observes at pp. 2726-7 that the Griggs and Albermarle cases 



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require that "...to establish a prima facie case of discrimination, 
a plaintiff need only show that the facially neutral standards in 
question select applicants for hire in a significantly 
discriminatory pattern." In Dothard, the plaintiff used national 
census data to show the relative proportions of men and women who 
would be excluded from employment as guards by minimum height 
requirements in the Alabama prison system. Mr. Justice Stewart 
at page 2727 accepted the use of generalized national 
statistics, stating that there is no requirement that a statistical 
showing of disproportionate impact must always be based on 
characteristics of actual applicants. He did not consider the 
acceptability of other kinds of evidence of disproportionate impact. 

In some cases, the requirement itself will permit a 
presumption of disproportionate impact to be made. In this 
category is the requirement of a cap or other headgear, or a 
requirement to be clean shaven, which will always, for example, 
exclude all Orthodox Sikh males from employment. Mr. Malik's 
case is not, however, one where this sort of assumption can 
be made. 

The Equal Employment Opportunity Commission in the United 
States has had considerable experience in assessing claims of 
disproportionate impact under Title VII. In its Compliance Manual 
(§ 135.2, p. 3146), the EEOC assesses different types of evidence 
it is prepared to accept to show disproportionate impact of a 
requirement. Although various kinds of statistical evidence are 

preferred. The Commission does endorse the acceptability of 
sociological studies, expert testimony and "any other evidence" 
which tends to show disproportionate impact. Counsel for the 
Commission argued that we should accept Dr. Henry's testimony 
as long as it was relevant and probative, applying to it the 
same touchstone as would be applied to any other type of 
testimony . 

The argument of "indirect disrimination" is a 
relatively new one in Canada. Obviously, keepers of statistics 
like Statistics Canada and others are unlikely to have set up 



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their data gathering mechanisms to accomodate proof of indirect 
discrimination claims. Collating or analysing data on a case- 
by-case basis for individual complaints may require vast amounts 
of time and money, even assuming that the raw information had 
ever been collected. In some cases of indirect discrimination, 
we may well find that prohibitions against soliciting in 
employment applications information about race, national origin 
or religion, contained in Human Rights Codes themselves, militate 
against collection of meaningful data on the hidden effects of 
neutral requirements. 

In the circumstances, it would not be helpful or 
realistic to impose a. flat bar against the use, in a proper 
case, of expert opinion evidence to establish the disproportionate 
impact of a particular requirement. However, it must be remembered 
that that evidence must still enable the plaintiff to make out a 
prima facie case of disproportionate impact on the members of a 
protected group. Even Mr. Justice Stewart in Dothard stated that 
there was no need for the plaintiff to exhaust every possible source 
of evidence if the evidence presented "on its face actually 
demonstrates" a requirement's disproportionate impact: p. 2727 
(emphasis supplied) 

It is, to my mind, doubtful whether Dr. Henry's evidence, 
even in conjunction with other testimony before the Board, 
establishes the disproportionate impact of this interview on 
persons of Mr. Malik's origin and culture. Although what she said 

was not inconsistent with what happened, it was not necessarily 
consistent with all that happened here. For example, two other 
East Asians, one with a Grade Twelve education like Mr. Malik, 
scored highly. We heard little evidence touching upon the 
twelfth rated candidate, said to be more similar to Mr. Malik in 
culture, religion and origin. However, one thing that did come 
out in the evidence was that this man's experience at the warehouse 
was as a typist, not a supply clerk. The letter informing him 
that he did not place in the competition emphasized this difference 
in background between himself and all the other candidates. From a 
review of the application forms submitted in evidence, it is apparent 
that this is so. It is difficult to use evidence of a "group" 
experience at this particular interview to establish its disproportionat 
impact. 



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This makes it difficult to say that the interview method fell 
disproportionately severely upon members of a protected group ^ or, 
in the words of Mr. Justice Stewart, that the method selects, 
applicants for hire in a significantly discriminatory pattern . 

Although the Commission tried to deal somewhat generally, 
through Dr. Henry's evidence, what its submission really amounted 
to was that Mr. Malik was a group of one - with certain characteristics 
- and that the interview method was unfairly hard on this group. 
One must show something more than this in order to show indirect 
discrimination arising from a superficially neutral requirement. 

There is an added difficulty. The suggestion was really 
that Mr. Malik's culture and upbringing made him poorly suited to 
perform well in an interview, even though his actual work performance 
was good. By suggesting that the interview result be invalidated 
because of its negative cultural implications, counsel for the 
Commission is indirectly asking that the employer be told to design 
its selection mechanism in a way that would be sensitive to the 
strengths and weaknesses of applicants. These would be strengths 
and weaknesses, mind you, arising from or connected with race, 
creed, colour, nationality, ancestry or place of origin, for the 
Code does not prohibit employer insensitivity to weaknesses stemming 
from other causes, like poverty or unstable family background. Yet, 
the Code itself states in section 4(4): 

No person shall use or circulate any form of 
application for employment or make any written 
or oral inquiry ... that requires an applicant 
for employment to furnish any information 
concerning race, creed, colour, nationality, 
ancestry or place of origin. 

How the employer is to insure a sufficient degree of evenhandedness , 
given the inability to ascertain this information, was not elaborated 
upon. Similarly, even if he or she knew the exact composition of the 
applicant pool, it would be necessary to have in addition sensitive 
and accurate information about the strengths and weaknesses of each 
culture. How to prevent the intrusion of stereotype and assumption, 
and how to ensure that the selection mechanism is fair for each, 
differently composed, applicant pool without being prohibitively 



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costly, are additional problems upon which we were not enlightened 
by counsel. Lastly, it is surely inevitable that someone whose 
culture and upbringing made him or her particularly suited to the 
interview format could complain if he were denied access to it 
because of the accident of the cultural composition of the group of 
his fellow applicants on a particular occasion. 

One can say, of course, that too much concern about these 
issues in Mr. Malik's case is just needless resort to a "floodgates" 
argument. Yet this case raises all too well the problems lurking 
close to the surface of the Commission's argument. The "indirect 
discrimination" approach was developed in the U.S. in cases dealing 
with very broad groups of persons, first blacks then women. In 
Singh v. S . I . S . , its use in Ontario was begun in a case involving a 
broad grouping where it could be assumed that all, or most, members 
of a well-defined group would be hurt by the requirement. In this 
case, the group is very ill-defined; its boundaries depend on 
intangibles like "upbringing," "culture," the degree of modernization 
or Westernization in a person's country of origin, and the length of 
time in Canada. All in all, the policy and factual basis for acceding 
to an argument of indirect discrimination here is just too remote. 

Although I make this finding on the first branch of the 
Commission's submission, there remain two other matters to be 
considered. 

Firstly, it will be remembered that an employer whose 
selection device has been shown to effect adversely a disproportionate 
part of a protected group can justify the impugned device by 
showing that it is a business necessity, and that there are no 
other, less discriminatory ways of choosing employees with the 
characteristics he or she needs. 

The Commission led the evidence of Professor Paul 
Stager, York University, concerning the merits of the interview 
itself. He is an Associate Professor at York, specializing in 
industrial psychology, and has had wide experience designing and 
evaluating selection devices for industry, military and government 
jobs. He evaluated the interview on the basis of information 



- 16 - 



supplied by the Commission: a copy of the scoring instructions 
used by interviewers, a summary of the scores obtained by the 
applicants, the job description for Clerk 2 Supply and a copy 
of the Civil Service staffing standards manual containing a 
description of the prerequisite for the Clerk 2 Supply job. 

The Commission's point was that the interview was 
an inappropriate method of selection for the supply clerk jobs, 
in addition to adversely affecting Mr. Malik. It was not 
entirely clear what use the Commission sought to make of this 
contention, and Professor Stager's evidence. At least in part, 
such material would forestall or make more difficult the 
employer's burden of showing a business necessity justification, 
once disproportionate impact had been established. It seemed, 
however, as if the Commission wished to go further, and have the 
Board infer from the serious flaws inherent in this interview 
method that it must have been discriminatory. It is not open 
to the Board to make such an inference. 

Professor Stager had little of a positive nature to 
say about this interview method. He stated that in an internal 
competition, like this one, considerably more weight should be 
given to on-the-job assessments of candidates. No on-the-job 
assessments figured in the selection process here, and Mr. Malik 
feels that he would have been awarded the position had his 
work experience prevailed over the interview results. 

The rating system itself was said to possess a lot 
of problems. Some of the scales (e.g. Experience, Value of 
Knowledge Related to Position) are not independent: they 
measure the same domain of behaviour. Thus the scale may 
overreward or overpenalize certain traits. This was the case 
in Mr. Malik's situation when his answer about returning from 
coffee break was counted against him under the two headings 
of Reliability and Initiative. 

Another flaw in the rating scale pointed out by 
Professor Stager was the way numerical values were assigned to 



- 17 - 



particular types of characteristics. The interviewers were 
required to award precisely the number assigned - i.e. 48 or 38 
points - and could not assign an intermediate factor more 
representative of the candidates ' performance . Similarly, the 
allowable maximum marks for each heading (i.e. Education, 
Experience) are fixed by The Skilled Trades Rating Manual; 
the interviewers were not allowed to assess which of those 
characteristics were more important for the particular job 
and thus worth more points. Expression, for example, was given 
a maximum total of 60 points, and education 48, although facility 
with oral and written English did not seem to be that important a 
requirement of this particular job. 

In addition to the drawbacks inherent in the scale 
itself. Professor Stager pointed out drawbacks in the way it 
was used. For example, the "Reliability" criterion seems to 
have been intended to measure how well a person could be counted 
on to perform the job. These interviewers used it to measure 
almost exclusively candidate perfonnance and attitudes about 
lateness. Moreover, Professor Stager criticised the interviewers' 
decision to arrive at the score for each candidate after all the 
interviews were over, and by way of consultation among themselves. 
The preferable alternative would have been for each interviewer 
to determine privately a score for each candidate after his 
particular interview, with consultation coming only at the end. 

However, it should be noted that one of his conclusions, 

set out in a letter entered as Exhibit 40, was: 

"In review, I do not believe that there is anything in 
the available material to indicate that there was 
particular discrimination against the complainants in 
the present case. However, any of the applicants, 
depending on their particular backgrounds and personalities 
could have been at a disadvantage given the assessment 
procedure which was used and the rating from on which 
the assessments were based." 



Doubtless, the evidence of Professor Stager would be 
difficult to overcome if the employer here had to show a business 
necessity for this particular interview, which could not be met 
in any other way. The interview was not ideally suited to elicit 
the kinds of characteristics one might look for in a supply clerk 
for the government publications warehouse. Mrs. Deault herself 
admitted, in response to questions from Mr. Goldenberg, that the 
three interviewers might well have devised better questions, but 
that they simply didn't. The fact that all applicants had prior 
on-the-job experience makes more clear the availability, in this 
case, of an alternative method of assessment. 

The employer here argued that the interview format was 
required by The Civil Service Commission. Apparently, once it 
has been decided that there will be a competition for a job, as 
was done here, the interview requirement follows. So, too, does 
the use of a standard method 'of evaluation like Exhibit 38a. The 
"business necessity" position of the Crown thus has two aspects. 
Firstly, one can focus on the particular job being offered and ask 
whether the use of an interview format (which is discriminatory) is 
a business necessity, i.e. whether it is needed to select employees 
with particular characteristics necessary for the job, and whether 
non-discriminatory alternatives are available. Secondly, one can 
focus on the necessity of having personnel practices in a very 
large employer which permit relatively inexpensive, efficient, 
processing of applications for the many and varied jobs which are 
always coming vacant. The employer did not go into this sort of 
argument very thoroughly. It was dealt with in part by counsel 
for the Commission when I asked him what sort of obligation the 
Ministry would be under if Mr. Malik were successful. He 
sxibmitted that the Ministry would at least be under an obligation 
to see that the test is an appropriate selection mechanism and 
use other methods of evaluation "where feasible." He did not 
elaborate upon what considerations should bear on the assessment 
of feasibility. 



{ 



- 19 - 



In my view, the employer has not shown here that the 
interview method used was a business necessity as that concept 
is developed in the cases. It has not shown that the interview 
was particularly appropriate to elicit candidates with characteristics 
desired by management for the efficient, and safe operation of its 
business. Nor, within the context of this job, have they shown that 
there was not available a different method to achieve the same 
object. It may be, to be sure, that widespread use of an interview 
(or any uniform) method of assessment may in general terms be a 
business necessity, given overall, cost and efficiency considerations. 
Ironically, introduction of a standardized test for civil service 
positions has, at various times in our history, been regarded as a 
positive step toward achieving equality and removing favouritism. 

Because, however, of my previous finding on the question 

of indirect discrimination, it was not necessary for the employer 
here to satisfy the business necessity test. I have found that the 
Commission has not established that the interview method had a 
disproportionately unfavourable impact upon a protected group of whom 
Mr. Malik was a member. However unpalatable the result to Mr. 
Malik, I do not think that the result was brought about by direct or 
indirect discrimination. 

The Commission did not allege in this case that there was 
direct discrimination against Mr. Malik. They did, however, lead the 
evidence of Mr. Malik concerning incidents in the workplace prior to 
the interview period which Mr. Malik viewed as discriminatory. The 
first incident involved the tripping of another Pakistani employee 
in the lunchroom. In the second, a fellow employee slapped Mr. Malik, 
called him a "Faki" and made derogatory comments about the lifestyle 
of Pakistanis in Canada during an altercation about the time Mr. 
Malik arrived at work one morning. In both cases, Mr. Malik testified, 
he had thought that management reaction had not been firm enough. 
This, if I understand his testimony, shows at least tolerance of 
discrimination by the Respondent, if it does not go all the way 
toward establishing discrimination on its part. In such an atmosphere, 
^it appears, Mr. Malik readily concluded that his not being hired had 
a racist cause. 



- 20 - 



This "atmospheric" evidence was not used by Counsel for 
the Commission to try to establish a predilection to discriminate. 
Indeed, it would seem from the evidence before the Board that warehouse 
management responded properly in the incidents cited. 

Following the tripping incident, the warehouse manager 
Mr. Turkington composed and posted a notice affirming the Government's 
adherence to The Human Rights Code . Filed as Exhibit 6, the notice 
said in part "This warehouse is a part of that Government and as such 
it's [sic] employees are expected to conduct themselves in a manner 
consistent with what the "Code" is meant to convey." 

Testimony with regard to the second incident showed that 
Mr. Malik had himself sworn at his offending co-worker, and that the 
warehouse manager had rebuked both men for their unacceptable conduct 
- the slap, and the profanity. In addition, the warehouse manager 
told the employee who had slapped Mr. Malik that a repetition of his 
actions would put his job in jeopardy. Mr. Malik read and confirmed 
the accuracy of Mr. Turkington 's memo to file concerning the 
incident, which was later filed as Exhibit R4 at the Inquiry. 

Mr. Malik was offended by some of the questions asked at 
his job interview, but not, according to his testimony, because they 
had discriminatory overtones. He felt questions about going to night 
school were an intrusion into his privacy. He thought he should have 
been asked how he did the job and whether he liked it. 

There was not a full review before the Board of the 
on-the-job performance of all applicants; the Commission correctly 
did not attempt to do in this hearing what it said should have 
been done in the first place. Certain details of the on-the-job 
performance of Mr. Malik and the ninth-rated applicant did, however, 
emerge. In particular, on what seemed to be a key question of 
attitude to coffee breaks, lunches and punctuality, it seems as if 
the two men were relatively similar. Mr. Chandar Kohli, one co- 
worker, testified that both Mr. Malik and the successful applicant 
"goofed around" but Mr. Malik did less. Another co-worker, Lionel 



1 



- 21 - 



Persaud, said that both "goofed off", Mr. Malik in the morning 
and the other man at lunch. 

On the basis of the evidence, it does not seem as if 
wrongful discrmination - direct or indirect - played any part in 
the Ministry's decision not to award the job to Mr. Malik. Commission 
counsel argued that we should find in Mr. Malik's favour if prohibited 
factors played any part in the decision; it was not necessary to 
show that they were the sole factor involved: Ry. Bushnell 
Communications Ltd. et al. (1974), 4 O.R. (2d) 288 (C.A.). Although 
I agree with the submission as to the law, I cannot see any basis 
for applying it here. 

Even though I find that the Respondents have not 
contravened any provision of the Code, some attention should be 
paid at this juncture to Mr. Malik's claim for damages, had he been 
successful. Counsel requested damages for lost wages and damages for 
the suffering and indignity felt by Mr. Malik. 

I have no doubt that Mr. Malik's feelings were hurt and 
his expectations disappointed by the decision. There is evidence that 
his co-workers also expected, on the basis of his seniority, that he 
would receive a permanent position. Mr. Malik testified that not 
being hired really hit him hard and that he thereafter felt he would 
not get a good reference from the government. 

A Board in a proper case does have the power to award 
general- damages for injury to feelings. Had the Commission 
established its main case, I would have considered making an award 
of $5 00 on this head. Although he did establish injury to feelings, 
the evidence showed that Mr. Malik's expectations regarding the 
interview itself were not very realistic; it also showed that those 
associated with the Ministry behaved in a decent and straightforward 
manner, even if the interview process was in this case a clumsy 
mechanism. Two of the nine jobs in the publications warehouse went 
to persons of "East Asian" origin. For these reasons, I would not 
find a higher award appropriate. 



i 



- 22 - 



Mr. Malik's claim for lost wages is somewhat more involved. 
He claims in respect of the period April 1, 1978, following the 
termination of his last contract, to October 31, 1979, the first day 
of the hearing. At his salary with the government as of March, 1978 
($453.44 every 2 weeks), he would have earned $18,727.00, over this 
period. He actually earned $6,948.80, $3,000 from Unemplyment Insurance 
received during two periods ($1,650 in April to June of 1978 and 
$1,350 in January to March of 1979) and $3,948.80 from employment at 
Philco Ford assembling components for car radios from June 21, 1979 
to the date of the hearing. 

His claim is for the difference between what he would 
have earned at his old rate and what he actually earned, or $11,783.00. 

Problems with his claim for lost wages are fourfold. Firstly, 
the claim includes amounts in respect of the period June, 1978 to 
January, 1979 when Mr. Malik was outside Canada. In June of 1978 
he went to Libya, staying there until the end of August, 1978 . In 
Libya, he unsuccessfully sought employment with the Arabian Gulf . 
Exploration Co. (Ex. 19) , Mobil Oil and Oxy Oil. 

From Libya, he went to Pakistan. There, he unsuccessfully 
sought employment in a number of capacities, including: computer 
engineering with International Computers Limited; the Ministry of 
Petroleum and Natural Resources; electrical engineering or television 
engineering with the Pakistan Telegraph and Telephone Department; 
the Pakistan Atomic Energy Commission; and engineering with The 
Pakistan Water and Power Development Authority. He returned to 
Canada in January, 1979. His reasons for seeking jobs overseas where 
he had family living, inlcuded his impression that he would not get 
a good reference from the Ontario Government, and that his job search 
here would be fruitless. He explained the somewhat elevated character 
of the positions sought by saying that he wrote general letters of 
application, setting out his experience and education, which included 
an electronic technician certificate from Centennial College. The 
Companies to whom he applied specified the jobs available, and may 
have overestimated the weight of his Canadian qualifications. 



I 

r 



f 



- 23 - 



The Respondent objected to there being an award for lost 
wages in respect of the overseas period. Although it can only be 
an observation at this stage, I agree with the submission. There 
is not enough evidence to show that these six months constituted a 
bona fide search for employment; they may indeed simply have prolonged 
the jobless period. 

Mr. Malik's job search in Canada also bears some evidence 
of rather optimistic expectations, given his experience and education, 
even including the computer course. He applied for positions with 
a CIDA project assisting the Water and Power Development Authority 
of Pakistan in construction of transmission lines and substations, a 
position at Canadian Pittsbugh Industries, a position with the Saudi 
Arabian Automatic Telephone Project of Philips Telecommunications in 
the Netherlands and a job with Canada World Youth, an international 
service organization. He also, however, registered at Manpower as 
an electronic technician, upon the recommendation of a counsellor there. 
He also went in search of warehouse jobs he saw advertised on the 
board at Manpower when he visited the office. On balance, I think 
that Mr. Malik's efforts to find employment in Canada were serious and 
realistic, and that had his complaint been successful he would have 
merited compensation for lost wages. 

The duration of that compensation is however, a difficult 
point. He became employed, albeit at a lower rate than his government 
job, in June, 1979 and his lawyer asked for the difference between 
the old and new rates up to the date of hearing. Counsel for the 
respondent submitted that he should have had nothing in damages for 
the period after obtaining his new job. 

The basis of the submission of counsel for the 
Commission must have been that Mr. Malik would have kept his Ontario 
government job if awarded it as of March 1, 1978. Yet, it was 
pointed out that new permanent employees of the civil service are 
subject to a probationary period of a year. One factor which could 



1 



- 24 - 



cause job loss in that time is i lateness; since contract employees 
are not paid for time missed because of lateness, but civil servants 
are , the government takes a keen interest in ensuring punctuality in 
its permanent employees. 

There was nothing to show that Mr. Malik would definitely 
have lost his job for lateness. Yet there was enough on the record 
to indicate some problem in this regard. In the circumstances the 
doubt is sufficient reason not to accede to counsel's request that 
he have the difference in rates. In addition, there is no real 
comparison on the record of all the terms and conditions of the 
warehouse job and the Phillco Ford job. It may well be that the 
lower rate is made up for by some advantage (e.g. Union representation, 
paid holidays, other benefits) not available in the contract position. 

To summarize, I find that the complaint of discrimination 
has not been established against any of the Respondents. There is 
an insufficient showing of disproportionate impact of the interview 
format on a protected group of whom Mr. Malik was a member. The 
generality of the expert testimony, the problems of defining the 
group, and the experience of the other three applicants of East Asian 
origin all militate against ruling in favour of the Commission and 
complainant. 

Had there been a showing of disproportionate impact, 
the Respondent Ministry would have been, in my view, unable to 
satisfy its burden of showing the interview to be a business necessity, 
performing functions which could not be done in any other way. 

The interview method used here was indeed a clumsy 
instrument, not particularly useful in matching characteristics with 
job requirements. Yet its frailty is not, of itself, sufficient 
ground for labelling it discriminatory. For a contract worker like 
Mr. Malik there is unfortunately no access to the disputes resolution 
mechanism of the regular grievance process. This is, in my view, 
clearly a case where access to a grievance mechanism would have been 
appropriate. Similarly, the protection given by seniority in a 



- 25 - 



collective bargaining system would have ensured recognition of 
Mr. Malik's past contributions. The problem here is that to get 
access to any mechanism for providing redress, Mr. Malik had to 
show wrongful discrimination. On the facts, this was just not 
possible. 



and three individual employees thereof. Even had I found a sufficient 
showing of disproportionate impact, I would have held that the 
complaint was established only against the Ministry, Disproportionate 
impact, and failure of the business necessity defence, would 
properly in these circumstances have been regarded solely as the 
responsibility of the "institutional" respondent. The individuals, 
although they framed the particular questions and made the ultimate 
decision, were doing so within requirements which did not give them 
much freedom to influence the outcome. Theirs was not the decision 
to require the interview as the sole method of evaluation. Nor was 
there any allegation of improper attitude or behaviour, along 
discriminatory lines, on their part as individuals. 

Accordingly, this Board orders that the complaint be and 
the same is hereby dismissed. The formal order of the Board is 
affixed hereto. 



Lastly, the complaint as amended was against the Ministry 



Dated at Toronto this 26th day of February, 1981. 




Mary Eberts 
Board of Inquiry 



J 



IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE 
R.S.O. 1970, c. 318, as amended. 



AND IN THE MATTER OF the complaint of Mr. Nadim 
Altaf Malik against Her Majesty the Queen in 
Right of Ontario acting through Her servants and 
agents in the Ministry of Government Services, 
and the following servants or agents personally, 
John Noble Turkington, Christine Deault and 
D'Arcy Counsell. 



ORDER 

UPON reading the complaint of Mr. Nadim Altaf Malik, 
upon hearing the evidence and considering the exhibits herein, 
and upon hearing Counsel for the Ontario Human Rights Commission 
and the complainant, and counsel for the Respondents, 

IT IS ORDERED that the complaint be and the same is 
hereby dismissed. 

DATED at Toronto, this 25th day of February, 1981.